I appreciate Ilya Shapiro’s plea for us all to get along. The most productive way to do so when it comes to religious liberty is by affirming the values of both of the First Amendment’s religion clauses. It is easy and all too common to undervalue the Establishment Clause and its unique and essential role in protecting the religious freedom we enjoy. That is particularly true when one skims the surface of disputes over government-sponsored Ten Commandments displays or when one is not invested in providing public schools that serve all children without regard to religion. The principles of “no establishment” and “free exercise,” however, are two sides of the same coin and ensure that the government’s role in religion is limited. Those principles are necessary to move in the direction of a live-and-let-live attitude toward religion that Shapiro embraces.
David Gans’ strong defense of the Establishment Clause in our constitutional order appropriately broadens the lens and advances the conversation. The state and federal “no establishment” constitutional provisions remind the government that questions of when, where, how, and what to worship are outside its realm of competency. If a church or synagogue wants to erect a Ten Commandments monument, it should have every right to do so, but it may not demand that the government use taxpayer dollars and property to do it. The role of these constitutional provisions in debates over school vouchers is important, not because they hobble anything but because they are part of what keeps government from interfering in religion.
Interestingly, Shapiro dismisses the religious liberty concerns raised by President Donald Trump’s Executive Orders on immigration partly because they aren’t crafted well for the purpose candidate Trump asserted. The connection between the candidate’s rhetoric and the president’s actions is just one of the many legal issues that will be examined, along with the impact on Muslims cited by Gans. Regardless of the outcome of the constitutional claims in court, however, religious liberty has been harmed. It takes more than just legal protection to ensure that faith can be freely practiced, and anti-Muslim rhetoric, especially coming from our leaders, denigrates religious liberty for all. Just as in other contexts where the way we talk about religious liberty matters, there are significant consequences when we lose sight of the principle that all religions should be treated the same under the law.